Arnold v. Arnold

• Decision Date: 09 February 1965
• Docket Number: No. 51513,51513
• Parties: Sylvia C. ARNOLD, Appellant, v. Eugene A. ARNOLD, Cross-Appellant.
• Court: Iowa Supreme Court

Page 53

133 N.W.2d 53

257 Iowa 429

Sylvia C. ARNOLD, Appellant, v. Eugene A. ARNOLD, Cross-Appellant.

No. 51513.

Supreme Court of Iowa.

Feb. 9, 1965.

Richard C. Turner, Council Bluffs, for appellant.

Kistle & Telpner, Council Bluffs, for cross-appellant.

GARFIELD, Chief Justice.

It is most regrettable this marriage has found its way onto the rocks. It is doubtful the divorce granted on plaintiff-wife's petition will lead to happiness for either party. It is hoped further consideration may be given the matter of reconciliation.

The record of defendant-husband's climb from a dollar-a-day laborer when married in 1935 to sole owner of an important industry, with an annual salary of $36,000 and a $7500 Cadillac for his use, at the time of trial in December, 1962, reads like the nearly forgotten tales of Horatio Alger, Jr.

Plaintiff's petition alleges as cause for divorce what section 598.8, Code 1962, I.C.A., designates 'such inhuman treatment as to endanger the life of his wife.' Much of the amended petition consists of allegations of what plaintiff thought she was entitled to as division of property, alimony, child support, suit money and attorney fees. The answer is essentially a denial. Defendant filed no cross-petition although at the close of his evidence on plaintiff's right to a divorce he asked and was granted permission to cross-petition, 'to conform to the proof,' for divorce on the same ground plaintiff charged against defendant. Perhaps failure to file the cross-petition was due in part to the trial court's announcement, soon after permission for the filing was granted, he intended to grant a divorce, without assigning the blame therefor to either spouse.

The decree, however, finds defendant guilty of such inhuman treatment as to endanger plaintiff's life and health and that she is a fit and proper custodian of the three minor children-twin boys, 13, and a girl, 11. The two oldest daughters had married and left home and the oldest son became 21 during the trial. While he lives at home he is steadily employed in defendant's shop at good pay and is selfsupporting.

The decree provides the parties are divorced and custody of the three minor children is granted plaintiff, subject to defendant's right to visit them at reasonable times and places. Details of the decretal provisions regarding property settlement, child support, suit money, costs and attorney fees will be stated later when we consider these matters. Plaintiff's appeal complains principally of these provisions. Defendant's cross-appeal asserts plaintiff is not entitled to a divorce because 1) the doctrine of recrimination bars her claim thereto, and 2) corroboration of her asserted ground for divorce is insufficient. The cross-appeal also asserts the award of attorney fees to plaintiff's counsel is excessive.

I. Plaintiff first complains the decree merely devorces the parties without providing the divorce is granted to her. She thinks this may indicate the trial court recognized the doctrine called 'comparative rectitude' and did not consider defendant's conduct in arriving at provisions of the decree against which plaintiff's appeal is mainly directed.

As previously explained, only plaintiff asked a divorce; defendant resisted it. Also the decree finds defendant guilty of such inhuman treatment as to endanger plaintiff's life. Notwithstanding failure of the decree expressly to grant the divorce to plaintiff it seems clear this is the effect of the decree. It may hardly be assumed the divorce was granted the spouse who resisted it. See Bartels v. Bartels, 246 Iowa 942, 955, 69 N.W.2d 41, 48; 17 Am.Jur., Divorce and Separation, sections 465, 574.

In any event, our review is de novo. Rule 334, Rules of Civil Procedure, 58 I.C.A. We review the facts as well as the law and draw what we think are proper conclusions therefrom. Gilbrech v. Kloberdanz, 252 Iowa 509, 515, 107 N.W.2d 574, 578. We have concluded plaintiff is entitled to the divorce and now state it should be granted to her. To the extent we deem proper, conduct of both spouses will be considered, along with other matters, in determining division of property and related matters.

In view of the extent plaintiff argues this question and defendant's contention the doctrine of recrimination bars plaintiff's right to a divorce, we may add that where both spouses have grounds for divorce a divorce will not be granted to either. This is the doctrine of recrimination. Paulsen v. Paulsen, 243 Iowa 51, 57-58, 50 N.W.2d 567, 571; Kentzelman v. Kentzelman, 245 Iowa 579, 583-584, 63 N.W.2d 194, 196; Leigh v. Leigh, 247 Iowa 358, 361-362, 73 N.W.2d 727, 729; Phillips v. Phillips, 251 Iowa 1310, 1317-1318, 104 N.W.2d 832, 836.

The principle or doctrine of comparative rectitude is in the nature of an exception to the doctrine of recrimination and is applied in a few states, mainly by statute, where it appears the parties cannot live together and a divorce is best for their general welfare. We do not recognize this principle. Paulsen and Kentzelman cases, supra. See also Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, 63 A.L.R. 1127, and Anno. 1132; Hove v. Hove, 219 Minn. 590, 18 N.W.2d 580, 159 A.L.R. 731, and Anno. 734.

We may also observe we have said it is better practice for a divorce decree to state to which party the divorce is granted, although omission of such a provision does not invalidate the decree. Oliver v. Oliver, 216 Iowa 57, 60, 248 N.W. 233. See also Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238, 133 A.L.R. 549, and Anno. 556.

II. Since, as stated, defendant's cross-appeal challenges plaintiff's right to a divorce, it seems best to consider that question next. We have already said we think she is entitled to the divorce. The principal rules of law applicable to this phase of the case are so well settled it is perhaps unnecessary to restate then. In any event, extensive citation of supporting precedents is not called for.

To be entitled to a divorce under Code section 598.8, subd. 5, I.C.A., plaintiff was required to prove 1) inhuman treatment by defendant, and 2) danger to her life therefrom.

We have frequently held life may be endangered by impairment of health. Also that life may be endangered where such danger is reasonably to be apprehended. We have repeatedly held conduct of one spouse may amount to such inhuman treatment as to endanger life even without physical violence or mistreatment. Howe v. Howe, 255 Iowa 280, 122 N.W.2d 348, 349, and citations, and McMurray v. McMurray, Iowa, 126 N.W.2d 336, 338, and citations, support these rules.

Any mistreatment which deprives a spouse of needed rest, peace of mind and affects the nervous system so health is undermined may endanger life as effectively as physical violence. Cimijotti v. Cimijotti, 255 Iowa 77, 79, 121 N.W.2d 537, 538, and citations; Hancock v. Hancock, 256 Iowa ----, 131 N.W.2d 757, 760.

One principle that finds application here is that conduct of one spouse toward another person of the opposite sex, even without adultery, may amount to such inhuman treatment as to afford cause for divorce. Rasmussen v. Rasmussen, 252 Iowa 414, 420, 107 N.W.2d 114, 117-118, and citation; Lane v. Lane, 253 Iowa 92, 95, 111 N.W.2d 286, 288.

Code section 598.7, I.C.A. provides 'No divorce shall be granted on the testimony of the plaintiff alone.' Corroboration is required to prevent collusion between the parties. It is not necessary, however, that every detail of plaintiff's testimony be corroborated or that the corroboration alone sustain the decree. Also defendant's testimony may corroborate plaintiff's. Payton v. Payton, 252 Iowa 772, 776, 108 N.W.2d 358, 360, 86 A.L.R.2d 416, and citations; Lane v. Lane, supra, at pages 95-96 of 253 Iowa, page 288 of 111 N.W.2d. See also Hancock v. Hancock, supra, 256 Iowa ----, 131 N.W.2d 757, 760, and citations.

III. When married in May, 1935, plaintiff was 17, defendant 19. He had dropped out of school in the seventh grade to help his father farm. Not long after the marriage defendant went to work for a truck gardener for $9. a week, a shed to house the couple and some vegetables to eat. In 1936 defendant again worked on a farm. He took a 13-weeks high school night course in machine shop practices while working days in such a shop in Omaha. This was followed by ten years work at Stengles' machine shop in Council Bluffs, starting with 70 hours a week as an apprentice. The last five years he was shop foreman and did outside work of his own at night, caring for racing autos, repairing washing machines and sharpening lawn-mowers.

At Thanksgiving time, 1951, a physician advised defendant he was working too hard, and must give up either his job at Stengles' or the outside work of his own. He quit his regular job and devoted full time to the shop he had set up in the rear of the family dwelling in Council Bluffs. Four or five years later defendant moved his shop to a building on Broadway which, with two additions subsequently built, now houses Arnold Tool & Die Works, Inc., with 22 employees. The business was incorporated July 1, 1959.

Plaintiff encouraged defendant to go into business for himself and helped him in it part time for four to five years following inception of the venture. She kept books on Fridays, helped with deliveries and other work, a total of about two days a week. After the shop was moved to Broadway a full-time bookkeeper was employed and plaintiff stopped helping in 1956. During at least part of the period plaintiff assisted in the business outside help was procured for the home.

Unfortunately the parties' married life has not succeeded as the Arnold business has. Defendant lost his love and affection for plaintiff and such attention as was not devoted to his shop was largely centered on another woman, married but separated from her husband. Her first name was Dorothy. Commencing in February, 1962, defendant frequently kept very late hours with this...